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Cruel and Unusual Punishment On Planet New Orleans

I'm going to repost an article from DBM about how a law dating back to 1805 that criminalizes "unnatural copulation" (often taken to include oral and anal sex) is being used to force sex workers (especially trans women and racial minorities, who are disproportionately convicted), to be added to the sex offender registry. Not only that, but once on the registry, there are some far more dire consequences that go with the designation.

This law has cost the plaintiffs in Doe v. Jindal dearly. They must carry a state driver's license and identification card which features the words "SEX OFFENDER" printed in bright orange capital letters. They have had to send postcards to neighbors, schools, parks, community centers, and churches announcing themselves as sex offenders and disclosing their names and addresses. Their photographs, names, and addresses also appear on the online sex offender registry.

Some of the women who have joined this lawsuit as plaintiffs have been denied access to homeless shelters and drug treatment because those facilities won't accept sex offenders. As one woman explained: "When I call about a job, I have to ask if they will hire sex offenders." The answer is generally predictable. And as another woman pointed out: "When you mail those cards it's so humiliating. People kill you for that." More than one person has said that they fear for their safety.

The Center for Constitutional Rights has taken up the issue, and has filed a federal lawsuit following the most recent the Doe v. Jindal at the federal level in the Eastern District of Louisiana. The plaintiffs, who according to Harlot's Parlor include "a grandmother, a mother of four, three transgender women, and a man," are arguing that the law used to classify them as sex offenders ("Solicitation of a Crime Against Nature," a.k.a. SCAN) is unconstitutional and amounts to cruel and unusual punishment.

I'm reposting my previous article below, because there was very little interest in this issue at the time it was originally posted, and yet the situation is horrifically unjust when you find out the details. With the new happenings, hopefully people can be motivated to act, this time.

Please forward this far and wide, or write about it too, if you blog etc. Let's give this fight some momentum. Please.

---- Original Article ----

At Harlot's Parlour, Douglas Fox reminds us of the situation for sex workers in Louisiana, where women of colour and trans workers seem to be preferred targets of a backwards, draconian law that ruins lives:

"In many of the highlighted cases in New Orleans it is especially sex workers who are also the most vulnerable people in that society who appear to be the targets of this disgraceful policy. Placing people on sex offender’s registers that will affect their lives for years is not only disgraceful but wrong."

That's right, the end result of this policy is that women are put onto the sex offender registry. The law that enables this is a centuries-old statute that criminalizes "unnatural copulation." The sickening irony is that a legal tool meant to help protect children from predators is being used primarily to marginalize and impoverish women. And I probably don't need to say it, but the law has been and continues to be applied selectively. From Louisiana Weekly:

"New Orleans city police and the district attorney's office are using a state law written for child molesters to charge hundreds of sex workers like Tabitha as sex offenders. The law, which dates back to 1805, makes it a crime against nature to engage in "unnatural copulation"-a term New Orleans cops and the district attorney's office have interpreted to mean anal or oral sex. Sex workers convicted of breaking this law are charged with felonies, issued longer jail sentences and forced to register as sex offenders. They must also carry a driver's license with the label "sex offender" printed on it.

"Of the 861 sex offenders currently registered in New Orleans, 483 were convicted of a crime against nature, according to Doug Cain, a spokesperson with the Louisiana State Police. And of those convicted of a crime against nature, 78 percent are Black and almost all are women."

The LW article examines the issue in shocking detail (if that link goes out of date, it's also at Colorlines and Monthly Review). Because of a revision in 2006, the least serious offenses require a minimum of 15 years listed in the sex offender registry. The consequences of being charged with "unnatural copulation" and being added to the registry can include:

Having to purchase and mail postcards with one's photo on them to everyone in their neighborhood to notify them of one's conviction,

Inability to get released on bail, because they're seen as a greater risk for flight than most violent offenders,

Inability to get food stamps or public assistance because of a felony on record,

If one challenges ones sentence in court and loses, it becomes an automatic third offense, with a mandatory minimum sentence of 20 years,

Limited job and housing options, ensuring that one remains in poverty and the cycle is further self-perpetuated,

A mere arrest on probation (conviction not required) results in an extension of time on the registry.

(I've not been able to confirm this, but it's also been said that online chat can also get one added to the sex offender registry in New Orleans.)

According to NPR (which conflates human trafficking internationally with domestic sex work to reinforce the inaccurate meme that sex workers here are predominantly forced into prostitution), the johns are typically not similarly charged.

Change.org cites a public defender as saying that about half of all arrests for prostitution in New Orleans get tried in this way.

Lawrence v. Texas would seem to make this all unconstitutional. But as Hunter of Justice notes regarding sex workers:

"Lawrence...specifically excluded commercial sexual encounters from the ambit of constitutional protection that it recognized for consensual sexual acts between adults. And the Louisiana statute specifically criminalizes solicitation for sodomy for payment. As a result, the state can argue that this portion of the law is not affected by Lawrence."